UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DANIEL MORALES LARA, Defendant - Appellant. No. 23-6057 (D.C. No. 5:21-CR -00076-SLP-8) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , EID , and ROSSMAN , Circuit Judges.

________________ _________________ Daniel Morales Lara pled guilty to drug conspiracy and aiding and abetting distribution of methamphetamine. On app eal, he challenges the district court’s sentencing decisions denying him a mitiga ting role adjustment and imposing an enhancement because the methamphetamine was imported. Exercising jurisdiction under 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291, we affirm.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 11, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 12 I. BACKGROUND

A. Factual History Oscar Hernandez-Flores operated an Ok lahoma drug traffic king organization (“DTO”) from Mexico. The DTO imported liquid methamphetamine from Mexico to the United States, converted it into a solid, and di stributed it in Oklahoma. Mr. Hernandez-Flores direct ed family members and as sociates in Oklahoma City to conduct the DTO’s act ivities there. In 2020, he told a family member in Oklahoma City to expect a shipment of 80 kilograms of methamphetamine. Another DTO member coordinated the delivery. Mr. Lara and the other DTO memb er delivered the methamphetamine. Afterwards, they drove to a suspected stash house, entered the residence, and returned to the car with a bag. When th ey drove away, law en forcement stopped their vehicle, searched it, and found $261,875 in cash.
B. Procedural History Mr. Lara pled guilty to drug conspiracy and aiding and abetting distribution of methamphetamine. The rel evant procedural history concerns his sentencing, beginning with the presentenc e investigation report (“PSR”). PSR and PSR Objections Mr. Lara’s PSR explained that a 20 16 investigation had identified the Hernandez DTO as a supplier of the Ir ish Mob Gang (“IMG”), a gang based in Oklahoma prisons. After describing Mr . Lara’s role in the methamphetamine delivery, the PSR calculated Mr . Lara’s base offense le vel as 38 under the United Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 23 States Sentencing Guidelines (“U.S.S.G.” or the “Gui delines”). It recommended against a reduction under U.S. S.G. § 3B1.2 for playing a mitigating role in the offense. It also recommended a two- level enhancement under U.S.S.G. § 2D1.1(b)(5) because the me thamphetamine was imported. Mr. Lara objected to these recommendations. Sentencing Memorandum Mr. Lara submitted a sentencing memorandu m, which further elaborated on his PSR objections. He argued th at he should receive a mitigating role adjustment. He said that U.S.S.G. § 3B1.2 required th e court to determine whether he was substantially less culpable th an the average partic ipant in the crimina l activity, listed the five factors § 3B1.2 says courts should cons ider, and argued that the factors all weighed in his favor. He also argued th e importation enhancement should not apply. Sentencing

a. Mitigating role adjustment At sentencing, Mr. Lara relied on hi s sentencing memorandum regarding the mitigating role adjustment . App., Vol. 3 at 33. The Government argued the mitigating role adjustment should not apply because Mr. Lara “jumped straight into th e deep end” of th e enterprise, which required a “level of trust” from top DTO members. Id. at 37; see id. at 36-38. It said “lots of individuals during th e course of th[e] case . . . picked up drugs on multiple . . . occasions” but “none . . . ever possessed more metham phetamine than [Mr. Lara] possessed on that one day,” which “show[ed] the significance, the trust, the import, Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 34 and the reliance that Oscar Hernandez[-Flores] put on so mebody like [Mr. Lara] to protect his goods, to protect his money, and to get them to where [they] needed to be.” Id. at 38. It concluded that Mr. Lara’s “actions in this case [did not] represent a level of criminality of a lesser degree than the average defendant,” and instead, he was “a very important trusted part of th[e] organization.” Id. The district court denied the mitigating role adjustment. Id. at 43. It found Mr. Lara had “jumped straight into the d eep end” of the DTO and “clearly had the trust of the[] individuals” in the DTO b ecause “he was involved and privy to the transportation, not only of a substantial amount of money, but also . . . the transportation of a substantial amount of methamphetamine.” Id. at 42. The court also explained it was “not uncommon” fo r DTO members to be “responsible for [only] the transportation or handling of money,” but thes e individuals “often” do not handle the amount of money involved here , and Mr. Lara “tra nscend[ed] people in those positions by . . . also . . . trans port[ing] . . . a substantial amount of methamphetamine.” Id. The court concluded from “l ooking at the circumstance s as described in the presentence report and as argued by the government, . . . that [Mr. Lara] was involved enough, and did have enough of a role” to not receive the mitigating role adjustment. Id. at 42-43. b. Importation enhancement Mr. Lara argued he did not know and c ould not have reasona bly foreseen that the drugs were imported from Mexico. Id. at 31-33. Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 45 The Government noted that Mr. Lara di d not challenge that the DTO imported the drugs from Mexico. Id. at 34. It also argued that he knew or reasonably should have known the methamphetamine was imported, id. at 34-36, and by working for the DTO, Mr. Lara “[wa]s a part of th[e] ve ry primary chain of custody . . . between Mexico and the United States, id. at 36. The Government also observed that the Hernandez DTO supplied the IMG. Id. The district court imposed the importation enhancement. Id. at 40. It said that § 2D1.1(b)(5) does not require that Mr . Lara knew or should have known the methamphetamine was imported. Id. It further held that “even if the knowledge requirement were to apply,” there was “a fair probability that [Mr. Lara] actually knew that the methamphetamine was from Mexi co,” and “even if not, certainly, . . . he should have reasonably known the me thamphetamine was being imported from Mexico.” Id.

c. Sentence The district court, after explaining it had “fully revi ewed” Mr. Lara’s “robust” sentencing memorandum, id. at 29-30, overruled Mr . Lara’s objections, id. at 40-43. It determined Mr. Lara’s advisory Guide line range was 210 to 262 months and that Mr. Lara preserved his objections. Id. at 43-44. The court sentenced him to 180 months in prison.
II. DISCUSSION On appeal, Mr. Lara challenges the proced ural reasonableness of his sentence. He argues the district court erred in analyzing the mitiga ting role adjustment and in Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 56 determining the importation enhancement did not require scienter. Aplt. Br. at 29-37, 42-57. “Procedural reasonableness addresses wh ether the district court incorrectly calculated . . . the Guidelin es sentence . . . or failed to adequately explain the
sentence.” United States v. McCrary , 43 F.4th 1239, 12 44 (10th Cir. 2022) (quotations omitted). “[T]he overarching standard for our review of the procedural reasonableness of the court’s sentence is abuse of disc retion . . . .” United States v. Nkome , 987 F.3d 1262, 1268 (10th Cir. 2021). “[W]e review de novo the district c ourt’s legal conclusi ons regarding the guidelines . . . .” Id. (quotations omitted). “[A] dist rict court commits legal error when it applies the wrong test in making a factual finding at se ntencing,” and “[a]n error of law is per se an abuse of discretion.” Id. at 1269 (quotations omitted). We review the district court’s “f actual findings for clear error.” Id. at 1268 (quotations omitted). “[W]e w ill not reverse the district court unless the court’s finding was without factual support in the record or if after reviewing all the evidence, we are left with the definite and firm convicti on that a mistake has been made.” United States v. Delgado-Lopez , 974 F.3d 1188, 1191 (10th Ci r. 2020) (quotations omitted).
A. Mitigating Role Adjustment Mr. Lara argues the district court erred in several ways when it denied him the mitigating role adjustment. Ap lt. Br. at 29-37. We disagr ee and affirm the district

court. Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 67 Legal Background

a. U.S.S.G. § 3B1.2 The Guidelines instruct courts to appl y a mitigating role adjustment when a “defendant . . . plays a part in committing the offense th at makes him substantially less culpable than the av erage participant in the criminal activity.” U.S.S.G. § 3B1.2 n.3(A). Sect ion 3B1.2 calls for a four-level decrease “[ i]f the defendant was a minimal participant,” a two-level d ecrease “[i]f the defendant was a minor participant,” and a th ree-level decrease if th e defendant was “between” a minimal and minor participant. A minimal participant is “plainly among the least culpable of those involved in the conduct of a group.” Id. § 3B1.2 n.4. A minor particip ant is “less culpable than most other participants in the criminal activity, but w hose role could not be described as minimal.” Id. § 3B1.2 n.5. “[T]he crux of [the mitigating role ad justment] is a defe ndant’s relative culpability.” Nkome , 987 F.3d at 1273 (quotations omitte d). In determining whether the defendant was “substantiall y less culpable,” U.S.S.G § 3B1.2 n.3(A), the district court “should consider” five “non-exhaustive” factors: (i) the degree to which the defendant understood the scope and structure of the criminal activity; (ii) the degree to which the d efendant participated in planning or organizing the criminal activity; (iii) the degree to which th e defendant exercised decision-making authority or influenced the exercise of decision-making authority; Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 78 (iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; (v) the degree to which the de fendant stood to benefit from the criminal activity. Id. § 3B1.2 n.3(C). b. Preservation To preserve “any alleged procedural flaw,” a “defendant must . . . contemporaneously object in the district court to the method by which the district court arrived at a sentence.” United States v. Wireman , 849 F.3d 956, 961 (10th Cir. 2017) (quotations omitted); United States v. Yurek , 925 F.3d 423, 444 (10th Cir. 2019) (same).
In United States v. Lopez-Flores , 444 F.3d 1218 (10th Cir. 2006), we held the defendant failed to preserve his appellate sentencing challenge because he did not contemporaneously object in th e district court to the “method by which” it determined his sentence. Id. at 1220-21 (emphasis omitted) . We emphasized that a proper “contemporaneous objec tion” “can alert the dist rict court and opposing counsel, so that a potential e rror can be corrected, obviating any need for an appeal.” Id. at 1221. “[F]or example,” had the defenda nt contemporaneously objected that the district court “had not adequately e xplained [his] sentence” under the 18 U.S.C. § 3553(a) factors, the objecti on “would have enabled the court . . . to consider th[e] [§ 3553 factors] or to state affirmatively that the factors had been considered.” Id. Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 89 In Yurek , the defendant argued on appeal th at the district court applied the wrong legal test when it denied the mitigating role adjustment . 925 F.3d at 444. She asserted that “she preserved the issue by objecting to the presentence report,” despite her failure to raise the issue at sentencing. Id. We held the defendant failed to preserve this argument, sta ting that she “alleg[ed] an er ror in the district court’s explanation, not in the content of the pr esentence report,” so “objecting to the presentence report would not have alerted the district court to an error in its explanation.” Id. When a defendant fails to object at sentencing to the procedural reasonableness of the sentence, we gene rally review only for plain error. United
States v

. Eddington , 65 F.4th 1231, 1240 (10t h Cir. 2023). “To es tablish plain error, [the appellant] must show th at (1) the district court erre d, (2) the error was plain, (3) the error affected [his] substantial right s, and (4) the error se riously affected the fairness, integrity, or public reput ation of judicial proceedings.” United States v. Miller , 978 F.3d 746, 757 (10th Ci r. 2020) (quotations omitte d). Failure to argue plain error on appeal waives the issue. United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019) (“When an ap pellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinar ily deem the issue wa ived (rather than merely forfeited) and decline to review the issue at all— for plain error or otherwise.”). Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 910 Application Mr. Lara asserts the district court “legally e rred . . . in two ways,” Aplt. Br. at 29—first, by comparing him to individua ls “outside th[e] criminal scheme,” id. at 32, and second, by “failing to identif y the ‘average,’ or ‘mathematical’ middle participant” and then compare hi m against this participant, id. at 29. We read Mr. Lara’s brief to make a third argument—that the court failed to consider § 3B1.2’s five factors and that each fa ctor weighed in his favor. Id. at 32-36; see also United States v. Conley , 89 F.4th 815, 819 n.2 (10th Cir. 2023) (“We may review a party’s argument according to its substance rath er than the party’s characterization.”), cert. denied , No. 23-7046, 2024 WL 1607958 (Apr. 15, 2024). We address each argument in

turn.

a. Comparisons Mr. Lara argues the court erroneously compared him against individuals “outside th[e] criminal scheme.” Aplt. Br . at 32. He waived this argument. After the district court denied him th e mitigating role adjustment, Mr. Lara said that he “preserv[ed] [his] objections.” App., Vol. 3 at 44. But he never objected to the court’s comparisons—t he “method by which” it arr ived at the sentence. LopezFlores , 444 F.3d at 1220. His PSR objections did not “alleg[e] an erro r in the district court’s explanation.” Yurek , 925 F.3d at 444. Neither did his sentencing memorandum, which described the relevan t legal standards and argued he should receive the mitigating role adjustment. The memorandum did not, and could not, Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 1011 argue that the court had err oneously made comparisons b ecause the court had not yet done so. Mr. Lara therefore did not “alert the dist rict court” to his belief that it had incorrectly compared him to individuals outsi de of the criminal activity, such that it could “correct[]” the “potential error.” Lopez-Flores , 444 F.3d at 1221; see United
States v. Harrison , 743 F.3d 760, 763 (10th Cir. 2014) (“[T]he test is whether the district court was adequately alerted to the issue.”). Because Mr. Lara failed to contemporaneously object to the method by which the cour t compared him to others, and because he does not argue plain error on appeal, he has waived this argument. See Yurek , 925 F.3d at 445; Leffler , 942 F.3d at 1196. Even if we were to overlook waiver, his argument also fails on the merits. First, Mr. Lara argues th e court improperly compared him to members of the IMG, “a tangentially related but wholly diffe rent conspiracy and criminal scheme.” Aplt. Br. at 32. The court did not erroneou sly compare him to the IMG because the court never mentioned the IMG. See App., Vol. 3 at 3-63. The PSR did not compare Mr. Lara to IMG members, and the Gove rnment mentioned th e IMG only briefly when discussing the importation enhancement. There is thus no “indication in the record” that the court improperly compared Mr. Lara to the IMG. Nkome , 987 F.3d at 1273 (quotations omitted). Second, Mr. Lara argues the court errone ously compared him to a “generalized individual” in a DTO “who transports only money.” Aplt. Br. at 32; see also id. at 18. At sentencing, the court said Mr. La ra “transcends” such an individual because Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 1112 he transported a large amount of methamphetamine. A pp., Vol. 3 at 42. This comparison, even if e rror, was harmless. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that doe s not affect substan tial rights must be disregarded.”). The court denied the mitigating role ad justment based on “the circumstances as described in the presentence report a nd as argued by the government,” not based on any comparison to a generali zed individual. App., Vol. 3 at 42-43. The PSR and the Government described Mr. Lara’s relati ve role in the crim inal activity—detailing the individuals involved, th eir actions during the meth amphetamine delivery, and Mr. Lara’s place in the DTO hierarchy. The court therefore properly assessed Mr. Lara’s relative role, and any reference to a “generalized individual,” Aplt. Br. at 32, did not affect the court’s decision to deny the mitigating role adjustment. 1
b. Mathematical middle participant Mr. Lara argues the district court er roneously “fail[ed] to identify the ‘average’ or ‘mathematical’ middle participant[] and comp are Mr. Lara’s culpability” to this participant. Id. at 29. Mr. Lara waived th is argument. As explained previously, his PSR objections and sent encing memorandum did not object to the court’s method in analyzing the mitigating role adjustment. His memorandum did

1 See United States v. Eaton , No. 22-5061, 2023 WL 2336703, at *2 (10th Cir. Mar. 3, 2023) (unpublished) (affi rming when an error did not affect the district court’s ultimate decision). Unpublished opinions are cited in this or der and judgment fo r their persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1. Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 1213 not even attempt to identify an average part icipant or say the court needed to do so on the record. He does not argue plain error on appeal. Again, even if we were to overlook waiver, his argument also fails on the merits. The Guidelines do not require a court to identify a mathematical middle participant on the record. See U.S.S.G. § 3B1.2.

c. Section 3B1.2’s five factors Mr. Lara argues the district court legally erred in failing to consider the five § 3B1.2 factors and factuall y erred in finding the factors weighed against him. Aplt. Br. at 33-36. He preserved th ese arguments because his sentencing memorandum described the five factors and argued each of them favored him, and he “preserv[ed] [his] objections” at se ntencing. App., Vol. 3 at 44. i. Legal argument Mr. Lara’s legal argument fails because the court did not need to expressly address § 3B1.2’s five factors. Omission of express references to the factors does not mean it “considered none of the factors.” Aplt. Br. at 33. Under our precedent, we presume the court considered the factor s absent an indication otherwise. Nkome , 987 F.3d at 1273. Also, the court’s comment s at Mr. Lara’s sentencing indicate that it considered the factor s. It found that Mr. Lara “jumped straight into the deep end” of the DTO and “clearly had the trust of ” DTO members because he transported “a substantial amount of money” and “a subs tantial amount of methamphetamine.” App., Vol. 3 at 42. These findings speak to “the degree to which [he] understood the scope and structure of the criminal activity,” “the degree to which [he] participated in Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 1314 planning or organizing the cri minal activity,” and “the na ture and extent of [his] participation in the commission of th e criminal activity.” U.S.S.G. §§ 3B1.2 n.3(C)(i), (ii), (iv). ii. Factual argument The district court denied a mitigating role adjustment. App., Vol. 3 at 43. We review for clea r error. See Nkome , 987 F.3d at 1268 (10th Cir. 2021) (“The [district] court’s denial of a mitigating-role adju stment is a factual determination and, accordingly, we review it for cl ear error.”). The court di d not clearly err. The PSR and the Government’s evidence supported th e court’s decision. Mr. Lara argues the court should have weighed the five factors differently a nd should have granted him the adjustment, but the court’ s analysis does not leave us “with the definite and firm conviction that a mistak e has been made.” Delgado-Lopez , 974 F.3d at 1191 (quotations omitted).
B. Importation Enhancement Mr. Lara argues the district cour t erroneously held the importation enhancement does not require scienter. Aplt. Br. at 21-22, 42-56. Because he fails to challenge the district court’s alternative grounds for applying the enhancement, we affirm. Legal Background

a. U.S.S.G. § 2D1.1(b)(5) U.S.S.G. § 2D1.1(b)(5) states that th e court should increase the base offense level by two “[i]f . . . the offense involve d the importation of . . . methamphetamine Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 1415 or the manufacture of . . . metham phetamine from listed chemicals that the defendant knew were imported unlawfully .” Id. (emphasis added). The Guidelines do not specify whethe r the knowledge requirement applies only to “the manufacture of . . . methamphetamine from lis ted chemicals” or whether it applies also to “the importati on of . . . methamphetamine.” Id. We have not resolved this question. See United States v. Redifer , 631 F. App’x 548, 565 (10th Cir. 2015) (unp ublished) (declining to decide the issue); United States v. Beltran-Aguilar , 412 F. App’x 171, 175 n.2 (10th Ci r. 2011) (unpublished) (declining to resolve the issue but noting that the Gu ideline “appear[ed] to impose a scienter requirement only when” the offense involved the importation of listed methamphetamine precursors). b. Preservation “Our law is clear: The first task of an appellant is to explain to us why the district court’s decision was wrong.” United States v. Martinez , 92 F.4th 1213, 1265 (10th Cir. 2024) (quotations omitted). Thus, “[i]f the di strict court states multiple alternative grounds for its ruling and th e appellant does not challenge all those grounds in the opening brief, th en we may affirm the ruling.” Rivero v. Bd. of Regents of Univ. of N.M. , 950 F.3d 754, 763 (10th Cir. 2020). 2 We may affirm on an

2 See also GCIU-Emp. Ret. Fund v. Coleridge Fine Arts , 808 F. App’x 655, 665-66 (10th Cir. 2020) (unp ublished) (explaining “[w]e must uphold the district court’s unchallenged” alternative ground becau se the appellant did not “meaningfully address” it in the opening brief despite “expressly grappl[ing]” with it on reply); N8 Med., Inc. v. Colgate-Palmolive Co. , 727 F. App’x 482, 4 88 (10th Cir. 2018) Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 1516 unchallenged alternative ground because “t he second alternative stands as an independent and adequate basis, regardless of the correctness of the first al ternative.” Shook v. Bd. of Cnty. Comm’rs of Cnty. of El Paso , 543 F.3d 597, 613 n.7 (10th Cir. 2008). 3 Application Mr. Lara challenges the district court’ s determination at sentencing that the importation enhancement does not require scient er. Aplt. Br. at 21-22, 42-56. But the court also applied the enhancement for two alternative reasons that Mr. Lara fails to challenge on appeal. After stating that the im portation enhancement does not require scienter, the district court continued: “[E]ven if th e knowledge requirement were to apply . . . , there is a fair probability th at [Mr. Lara] actually knew that the methamphetamine was from Mexico,” and “even if not, certain ly . . . he should ha ve reasonably known the methamphetamine was being imported from Mexico.” App., Vol. 3 at 40; see

(unpublished) (finding the appellant’s failure to address the district court’s alternative ground in its opening brief “constituted a waiver” and the appellant addressing it on reply “was too late to prevent a waiver”); United States v. Barela , 561 F. App’x 738, 740 (10th Cir. 2014) ( unpublished) (same).

3 See also Martinez , 92 F.4th at 1265 (“[A]bsent . . . a challenge [to the district court’s alternative ground] , we may uphold the distri ct court judge’s ultimate decision . . . without reaching the merits.”); United States v. Wells , 38 F.4th 1246, 1262 n.12 (10th Cir. 2022) (“When a district court rej ects a claim on . . . independent grounds, an appellant must challenge each ground or risk waiver of the issue generally.”); Starkey ex rel. A.B. v. Boulder Cnty. Soc. Servs. , 569 F.3d 1244, 1252 (10th Cir. 2009) (“When an ap pellant does not challenge a district court’s alternate ground for its ruling, we may affirm the ruling.”). Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 1617 also id. at 41 (“[H]e certainly sh ould have reason to know that the drugs were being imported from Mexico.”). The court ther efore determined that two adequate alternative grounds justif ied the enhancement. See Berna v. Chater , 101 F.3d 631, 633 (10th Cir. 1996) (finding the district court reli ed on an alternative rationale the appellant needed to challenge when it held that “even if [the a ppellant] could establish that she was incapable of performing her past relevant work,” she could perform other jobs (quotations omitted)). 4 Mr. Lara needed to challenge the dist rict court’s alternative grounds or “necessarily lose[].” Shook , 543 F.3d at 613 n.7; see also United States v. Trujillo , 247 F. App’x 139, 145 (10th Cir. 2007) (unpublished) (“Wh ere an appellant challenges only one of two alternative rationales suppor ting a particular decision, the appellant’s success on appeal is foreclosed, regardless of the merits of his arguments relating to the challenged ground.”). He does not challenge the district court’s alternative knowledge grounds in his opening brief. See Aplt. Br. 21-22, 43-56. Failu re to brief an issue in the opening brief generally waives the issue. See Rivero , 950 F.3d at 763-64.

4 See also Murdock Acceptance Corp. v. United States , 350 U.S. 488, 490 (1956) (“The District Court also based its decision on the alternative ground that, even if the requirements of the statute were technically met, remission would be denied in the discretion of the court.”); United States v. Battle , No. 21-3128, 2022 WL 484031, at *1-2 (10th Cir. Feb. 17, 2022) (unpublished) (finding the district court relied on an alternative rationale that the appellant needed to challeng e when it held that “[e]ven if [the appellant] could establish an extraordinary and compe lling reason, the § 3553(a) factors would not support a reduction in sentence” (quotations omitted)). Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 1718 Mr. Lara asserts in his reply brief th at he did not need to challenge the alternative grounds because th e district court held there was a “fair probability” that Mr. Lara actually knew the methamphetamine was imported, which “[f]all[s] short” of the preponderance of the evidence sta ndard governing senten cing enhancements. Aplt

. Reply Br. at 8 (quotations omitted). This argument fails for three reasons. First, Mr. Lara cites no au thority for his argument that we must evaluate the merits of the district court’ s alternative grounds to dete rmine whether he needed to challenge them on appeal. See id. at 8-9. His argument a ppears to be an ill-fated back-door attempt to avoid the fact that he waived such a challenge. Second, even if Mr. Lara’s argument, rais ed for the first time in his reply brief, can be read as challenging the district cour t’s alternative grounds, “[i]n this Circuit, we generally do not consider arguments made for the first time on appeal in an appellant’s reply brief and deem those arguments waived.” Leffler , 942 F.3d at 1197; see also Rivero , 950 F.3d at 763 (affirming because “[t]he opening brief d[id] not even mention th[e] alternative ground”). Mr. Lara does not argue plain error. See Spratling v. Sovereign Staffing Grp., Inc. , 771 F. App’x 845, 845 (10th Cir. 2019) (unpublished) (declining to consider the appellant’s challenge to an alternative ground raised for the first tim e in his reply brief becaus e he “did not urge plain error”). Third, Mr. Lara’s “fair probability” argument does not contend with the district court’s additional alte rnative ground: “that he certa inly should have reason to know that the drugs were being importe d from Mexico.” App., Vol. 3 at 41. Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 1819 III. CONCLUSION We affirm.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 19